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Mountaintop removal ruling tossed

A federal appeals court panel on Tuesday overturned Chief U.S. District Judge Charles H. Haden II's ruling to limit mountaintop removal coal mining.

Three 4th U.S. Circuit Court of Appeals judges said that the state couldn't be sued in federal court over lax enforcement of strip-mine regulations.

In a 41-page opinion, Judge Paul V. Niemeyer wrote that the state's sovereign immunity - protected by the 11th Amendment of the U.S. Constitution - barred Haden from hearing the case.

"The federal command to a state official to comply with the state's law was so abhorrent to the values underlying our federal structure as to fall outside the bounds of" an exception to the 11th Amendment, Niemeyer wrote.

Niemeyer did not discuss whether Haden was correct to use a stream buffer zone to limit the size of mountaintop removal's valley fills.

The 4th Circuit sent the case back to Haden, and instructed him to dismiss it so it could be filed in state court instead.

"The big picture to me is that it's a West Virginia program, and it needs to be run by West Virginians," said Michael Callaghan, director of the state Division of Environmental Protection.

Bill Raney, president of the West Virginia Coal Association, praised the appeals court decision.

"It's positive news for the coal industry and positive news for the state of West Virginia," Raney said.

Doug Gibson, a spokesman for the United Mine Workers union, declined comment until UMW lawyers had time to review the ruling in detail.

Bill Case, chief spokesman for Gov. Bob Wise, also declined comment. So did a spokesman for Sen. Robert C. Byrd, D-W.Va.

A lawyer for the citizens who sought Haden's ruling to curb mountaintop removal promised an appeal to the U.S. Supreme Court.

"We believe that Judge Ha-den's ruling was correct, and respectfully disagree with the panel's decision," said Joe Lovett, lead lawyer for the plaintiffs.

"The 4th Circuit extended the 11th Amendment way beyond what the Supreme Court has allowed," Lovett said. "The panel has overturned not only the judge's order, but also the will of Congress."

Citizen groups could also ask the full 4th Circuit to reconsider the case before appealing to the Supreme Court.

In mountaintop removal, explosives blast off entire hilltops to uncover layers of coal seams. Huge shovels dig away the coal. Dozers and trucks dump leftover rock and dirt - the stuff that used to be the mountain - into nearby valleys, burying streams. In West Virginia alone, DEP officials have approved permits that allow more than 775 miles of streams to be buried by valley fills.

In July 1998, the West Virginia Highlands Conservancy and a group of coalfield residents filed a federal court lawsuit to try to curb mountaintop removal.

Lawyers for the citizens alleged that the state DEP and the U.S. Army Corps of Engineers had illegally approved dozens of mountaintop removal permits. They said that the permits did not require companies to protect streams and properly reclaim mined land.

Most of the claims in the suit were settled. But lawyers could not resolve a dispute over a rule that requires 100-foot buffer zones between mining activities and streams.

Citizen group lawyers argued that the buffer zone rule outlawed valley fills in perennial and intermittent streams. Perennial streams flow all year. Intermittent streams flow part of the year. Citizen lawyers said that the buffer zone rule allowed fills only in smaller, ephemeral streams, which flow only when it rains.

Lawyers for DEP and the coal industry said that the buffer zone didn't apply to valley fills. It couldn't possibly apply, they said. If it did, they said, all coal mining would be outlawed.

On Oct. 20, 1999, Haden ruled that the citizens were right. The judge blocked DEP from issuing any permits that allowed valley fills in perennial or intermittent streams.

Lawyers for DEP, the coal industry and the UMW appealed to the 4th Circuit.

In their appeals, DEP and the coal industry emphasized their view that the case belonged in state court, not in front of a federal judge.

The UMW opted not to join in that argument.

Ruling on only jurisdiction not surprising

As many legal observers expected, the 4th Circuit ruling issued Tuesday focuses exclusively on the question of federal court jurisdiction.

In 1977, Congress passed the Surface Mining Control and Reclamation Act to regulate strip mining.

Under the law, a federal agency - the U.S. Office of Surface Mining - would write nationwide mining rules.

States had two choices. They could allow OSM to police mining within their borders. Or, they could create their own regulatory agencies. If states created their own agencies, they had to write their own mining rules. Those rules had to be as strong as the national OSM rules.

"Thus, SMCRA provides for either State regulation of surface coal mining within its borders, or federal regulation, but not both," Niemeyer wrote in the 4th Circuit panel's decision.

"After a state enacts statutes and regulations that are approved by [OSM], these statutes and regulations become operative, and the federal law and regulations, while continuing to provide the 'blueprint' against which to evaluate the State's program, 'drop out' as operative provisions."

Niemeyer said that individual state regulations, once approved by OSM, could only be revoked if OSM decides to throw out a state's entire set of mining rules.

In this case, OSM approved West Virginia's strip mine rules in 1981, and the state was given authority to police coal operators here.

"Because West Virginia is a primacy state, its regulation of surface coal mining on nonfederal lands within its borders is 'exclusive,'" the 4th Circuit said.

To allow citizens to sue the state in federal court, the court said, "would circumvent the carefully designed balance that Congress established between the federal government and the states" and "end the exclusive State regulation and undermine the federalism established by the Act."

In his ruling, Niemeyer effectively overturned - with no explanation - the 4th Circuit's own opinion in a 1997 case called Molinary vs. Powell. In that case, a three-judge panel ruled that state rules that comprise a federally approved strip mine regulatory program are "issued pursuant" to federal law. Therefore, the court said in that case, the rules are enforceable in federal court. Niemeyer was on the panel that decided the Molinary case.

In Tuesday's ruling, Niemeyer was joined by Judges J. Michael Luttig and Karen J. Williams. The three are considered the most conservative judges on the 4th Circuit, which is among the most conservative appeals courts in the country.

Consent decree for settlement stands

Niemeyer, Luttig and Williams declined to throw out a consent decree that Haden approved to formalize the settlement of most of the other issues in the mountaintop removal case.

Coal industry lawyers had challenged the settlement, and argued that Haden did not have jurisdiction to approve it.

On that issue, the panel said that Haden did have jurisdiction. In his only mention of the Molinary case in Tuesday's opinion, Niemeyer wrote that the citizen suit provision of SMCRA "confers on federal district courts subject matter jurisdiction over at least some sorts of [strip mine] claims."

Because it ruled that Haden didn't have jurisdiction to hear the case, the 4th Circuit panel did not address the merits of efforts to use the buffer zone to curb the size of valley fills.

"I still believe that this is one of the ways that the surface mining act puts limits on these big fills," said Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy. "They did not really address the substance of the case, and we still believe that SMCRA and the buffer zone rule limit the size of fills."

To contact staff writer Ken Ward Jr., use e-mail or call

348-1702.


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